*1 compounded by The federal court’s error was trial appellants’ court when it sustained the demurrers com- plaint their motion for a and overruled new trial. summarily appellants’ reiterate
We cause of action appellees survived the death of the and was tolled commencement of action this in the federal district court again in the trial amendment to Section .court. by adding (f) procedural 7-801 subsection thereto is a re- quirement applied any pending to be action courts passage. applied at the time of It its should have been so prejudicial the case bar. Failure to at do so was and reversible part error on the of the federal courts and trial It is court. opinion overruling
our appel- the trial court erred in trial; lants’ motion for a new and the of the trial hereby court is appel- reversed with instructions to sustain lants’ for a motion new trial.
Judgment reversed.
Bierly, J., concurs.
Hunter, J., concurs in result.
Mote, J.,
participating.
Reported in
Note. —
Kavanagh v. Butorac. 20,399. [No. Rehearing January Filed December denied April 14, Transfer denied. 1967.] *4 Fairchild, Murray, Stewart, Richard and Stew- L.
James J. counsel, Indianapolis, appellant. art, Gilliom, of of for Irwin & Gleason, Wood, Eby Charles T. William Shortemeier, J. and Wood, counsel, Indianapolis, & appellee. of of for acting Chief Justice. —The trial court a without
Wickens, jury, plaintiff-appellee $100,000 awarded personal injuries. Appellee passenger was a in an which auto by collided with a appellant. motor vehicle driven aAs result appellee resulting collision injury suffered an in the surgical eye injuries removal of his left and other the latter significance. which the record treats as of minor
Although damage the evidence is not conclusive that the appellee’s eye brought by was about forcible its contact with mirror, the rear probability hardly view disputed. It question appellee established without that the car in which riding was passenger equipped as a front seat was with seat appellee’s belts and lap-belt was unfastened at the time of impact. injury 38-year
At the time of awas old married graduate degree man with children. He had a and was em- ployed bacteriologist salary as a at an annual in excess of interested, engaged, twelve thousand dollars. He in was and League baseball, swimming, hunting, Little and other athletic activities. appellee,
There was evidence to show that as a result of the go hunting injury, swimming was afraid to and when he Uncertainty driving, difficulty feared to dive. to his parking, disadvantages respect parallel with to his work League participa- shown the evidence. In Little were his formerly entirely by required help tion he in matters handled adversely work, contended, him. he was affected in that His longer microscope able to be- he was no use a binocular danger any he handle “hot” cause his fear had ceased to dangerous de- virus. It shown that his work was dangers good pendent upon vision and that there were handling of toxic immunization of animals. serums and in liquid pouring impaired into a tumbler he was vision. In *5 144 burning experience
He the of his hand on a Bunsen had had depth he to of in vision. burner which attributed a lack psychological effect of There the adverse is evidence as to by injury wit- is affirmed a medical the on and this by suffered appellant, related: "He has ness called this witness one,” “There physical psychological a trauma well as a as may or underneath; or worries be hurts there be doubts enough things ophthal- fears, strangely an but these are that directly.” surgeon mologist patient a does not ask very preceding briefly that summarizes We think the damage relating is most favorable to evidence to which Although appellant evidence and introduced decision. appellee’s questions of as the extent raised serious to disability to that consideration we are confined in our are, appellee. course, to evidence most favorable We weigh (1960), Dent v. Dent allowed to evidence. 336; E. v. Watson 231 174 N. 2d Watson 893; 385, 388,
Ind. E. 2d Zorich Zorich App. 547, 88 N. E. 2d Ind. excessive, damages
Appellant has that are asserted appellee proximately injury by that caused his own contribu- tory negligence and that trial court committed error refusing newly and erred consider discovered evidence evidentiary rulings. certain other negligence
Broadly person injured stated compensation. to reasonable another entitled Courts reasonably term means such sum as would said bodily injuries, pain compensate and suf him for for fering. past, present, To sum shall be added reasonably necessary expenses or incidental to the future injuries pecuniary plaintiff’s and all effort to alleviate his inability suffered, suffered, or to losses result engage occupation. "Compensation is the stated in his usual goal measuring damages personal in for of a court when Damages 2d, p. juries.” 22 Am. Jur. 121-122.
By nature, injuries personal individual, incapable to the are damages. of a more definite rule measurment of Each unique action is and it must treated and on be so determined peculiar the facts to that matter. Because our law seeks compen- problem properly individualize the solution to the sating torts, expedient every applies the victim of no overall *6 case. then, only general
For a formula common our law sets the guidelines compensating victim, way for the each in its own by weighed
to be considered the trier of facts and to compensation determine the what total Be will be. personal
cause of this nature of each case and since unique particular the decision the set of facts our courts given discretion,” trier said the of facts is to be “sound damages and “liberal discretion” where cannot be defined certainty by any calculated with mathematical or exact Haskell, etc., Trzop, standard. (1920), Car Co. v. 401; 128 E. Rutledge (1919) N. Jackson Rec. v. 188 415, 429, 579;
Ind. 122 N. E. Goldblatt Bros. Inc. v. Parish App. 368, 380, Hooper 110 835; Ind. 33 E. 2d App. 638, 641, 642, Preuss Ind. E. 2d 37 N. foregoing the
With in mind we have examined the record appeal. Appellant and briefs in this has documented numerous cases to show that the instant far exceeds says what as he “in Indiana or elsewhere” has been injury.” “comparable allowed for what he submits to be say eye We are not able the loss of an in one case is worth just or the same about the same in another case. If such a system (and express is to be desired no sentiment for we idea) legislation.1 it such must come from Our law common requires finally each to rest case on its own merits. adequacy 1. “The as an instrument ad- traditional tort law for
justing injuries arising claims out for of automobile accidents has been challenged fifty years.” legal periodicals nearly in 52 A. B. A. J. (1966). See article for various theories discussed. many by expressed This has been well authorities and we language Supreme call attention to the of the Court of Louisi- ana: [Cjases upon “. . . relied in that each be similar arm, injury the them similar involves a such as a broken eye eyes, or or member of the loss of an body. the loss of some similarity Thereafter, however, each the ceases for inadequacy different, adequacy or of the case is the circumstances facts and
award should determined pur primary peculiar pose personal The the case under consideration. fixing judge jury award a adequately compensate injury the in case is to injury to exist jured person shown for his under facts 239, 158 Gaspard (1963), 245 v. LeMaire La. in his case.” 2d So. duty have it understood that devolves on a would We damages. the amount of trial court to determine Whether not, jury appellate or is court is assisted review on the be the same. determination of the amount level should required are not and we make not our decision. We no effort say might *7 decision have been if we triers to what our were of the facts. Supreme has said:
Our Court higher damages jury “That the assessed than we would why done, no we should have is reason set aside the verdict.’’Chenowith (1854), . Hicks Ind. v appears originated Kent to have rule who the Chancellor Indiana, presently as to used when a reversal that rule is as ordered, said: should damages, therefore, must be so excessive to strike “The as blush, beyond measure, mankind, being, all un at first as manifestly outrageous, reasonable, and such and by passion, jury to have been actuated show prejudice, corruption.” 22 Am. Jur. partiality, or 473; p. R. 2d, Damages, New York Cent. R. Co. §366, 457, 466, E. Admx., 127 N.
Johnson, etc. 234 Ind. Ideal-Fitzgerald Baking (1965), 137 v. Cheek 603; Co. 2d 2d App. 317, 205 N. E. Ind. Appellant argues also that the excessive amount of the verdict is exhibited the fact that for was an amount “. . . more than twice the amount that plaintiff willing accept for his claim immedi ately prior concerning to trial.” The information set negotiations tlement proper place has no in the record. It should receive no from consideration the trial court from or appeal. promote this court encourage parties on To negotiate compromise and thus to stimulate desirable for parties reason evidence of efforts that have accepted made toward any settlement are not purpose.
Where
verdict was
for five times “the most
ever
asked in
Supreme
settlement” our
Court said:
policy
“Since it is the
of the law to
encourage
favor and
compromise
differences,
one who makes an unsuc-
cessful effort
toward that end
penalized.”
should not be
Indiana Insurance Co. v.
Handlon
447,
Our decision is ground that we cannot reverse on the the verdict is excessive. This also is the ques- answer to the parties
tion briefed both as to whether this court authority has to order a remittitur under the circum- stances here. appellant’s
Next we are concerned with contention of the contributory negligence existence aas matter of This law.
argument urged because of two (1) asserted reasons: “on failing keep proper (2) lookout” and the failure “to use safety device, belt, an available un- to-wit: a seat which prevented contradicted evidence established would substantially appellee’s injuries.” minimized the *8 appellant’s passenger
We are convinced from brief that a duty proper E., has some to maintain a lookout. 3. I. L.
Automobiles, 87, p. 442; E., Negligence, 21 I. L. § § p. 267.
148
Further, appellee passenger if a in rea- the exercise of approaching appel- care seen the sonable should have car of and could in care lant thereafter the exercise of such of vehicle directed the attention of the driver riding exercis- which he in time that driver so that ing prevented collision, have could would such care it duty Bruggner appellee’s Mattes been have so acted. v. App. 36, 44, 159 88 Ind. N. E. general are true is not
The fact that such assertions sufficient to establish the contention that whatever itself contributory in this did did do case constitutes negligence no conflict as a matter law. Even if there is judge may the evidence the trial have believed due .care part passenger on the not have avoided would injury. collision or “ contributory negli many 'This court has times said that gence ordinarily question jury, a of fact for the and and is only undisputed where the are it in cases that where is facts single reasonably only drawn a can inference say, law, matter of court can as a that this therefrom not, does, constitute conduct or does
a certain course of King (1916), negligence. contributory 184 Ind. Inland Steel Co. (Our emphasis.)” Baltimore & 110 E. 62.’ App. Patrick, Admtrx. R. v. Co. Ohio 2d 654. 117, 166 N. E. up” theory the available to “buckle that the failure
On his recovery, appellant also advances bar to is a belt seat consequences. 15 Am. He cites avoidable doctrine is in effect that one who Jur., Damages, § diligence care and jured exercise reasonable bound to theory resulting damage. This or to minimize avoid loss by many recognized authorities.2 well against . tort . . person committed one has “Where such means upon to use the latter
another, it is incumbent 2d, (1956); Am. 20.3, p. James, Jur. Harper & § 32-36, pp. S., Damages, 30-44, 50-71; 697-717. pp. J. § Damages, 25 C. *9 as are under reasonable the circumstances to avoid or damages. person wronged
minimize the cannot recover any damage item could which thus been have avoided.” and consequences “. . . the doctrine of avoidable not con- damages all, merely by
sidered a defense at which certain but a rule of particular may from items of loss be excluded McCormick, Damages, pp. consideration.” ch. and 130. explained by This is that author on the basis that the law only prevent repair not seeks to and individual loss in justice, protect but to and conserve the economic prosperity community. welfare of the whole He p. 127, supra: states further at machinery by “The encourage which the law seeks to the avoidance of loss denying wronged party recovery to the for such losses as reasonably he could . . avoided .” This doctrine differs contributory negligence from in that the latter comes into wrongdoing action the defendant’s completed. has been before contributory negligence recovery Thus proxi to bar must be a injury. Although mate cause of theory con avoidable sequences merit, has and failure to use the belts come proximate into cause, action after the no we have authorities permit which we believe us to invoke that doctrine under the evidence here to damage. recognize avoid or to lessen the We possibility applying of the doctrine in some future date and in some matter where the are circumstances clearer than showing instant case in part injury that some would except not have plaintiff occurred for the fact that to failed consequence avoid fastening the tort his seat applicable, belt. If the doctrine proof were sufficient is un permit say available to us as a matter of law results if fastened, seat belts were could not have included eye injury. the identical Defendant-appellant submitted the expert testimony safety of an on who tests conducted certain competent opinion plaintiff on a vehicle. His similar was mirror if his would not have collided with the rear view seat “properly” opinion had fastened. However is an belt been this regard liberty favorably, or judge which the trial at E., Evidence, disregard utterly. pp. 13 I. L. §§ 184, 186. testimony expert belts and the insofar as seat
Such record a remit are concerned are insufficient for us to base *10 grant consequences a or to titur because of avoidable reversal in this case. recognize public policy urges
Appellant court this to changing establishing that He avers old law and new law. develops for the first
where new factual situation right to time, an inherent “the courts have absolute change this On it becomes outmoded.” law whenever premise generally and common law does that the con S., cites C. J. absolute, of fixed or immutable he 15 sist rules Security American 613, and Helms Law, p. Common 1, 6, Co. can understand (1939), 216 22 E. 2d 822. We Ind. appellant agree the conclusion with these assertions. But
urges recognition that the of a common law doctrine new contributory negli belts is failure to use available seat given gence to consideration as a matter of law. We subject. argument appellant’s persuasive that learned and on in this the evidence In that connection have considered we judicial including testimony. expert have taken case We surveys knowledge subject thereof public of records predicting the time the accident. as Without of of becomes a appellant’s proposal time come when will not dogma, in this common this court cannot hold that law we say seat a matter of to use available as that failure case law negligence.3 contributory belts growing support Vol. belts. the use of seat 3. We are aware (A. (1966). jurisdic A.). p. Also one See “Trial” L.T. case, appeals where if death A. an court held in an F. E. L.
tion has negligence, employer by employer’s employee part” is caused “in rulings assigns Other appellant of the court which error occurring of law at the trial are: modify erred in court its failure to grant newly a new trial on the basis of discovered evidence. sustaining objections The court erred in ques- certain propounded
tions defendant. objected ruling above, Under the first appellant points out in his motion for new trial affidavits were submitted eye from men who had also lost an to establish that they testify they would play hunt, able were ball and they and that suffer no social accidents or embarrass ment on handicap. account of their Appellant appears recognize general newly rule that discovered evidence going question damages to the sole ordinarily cannot granting made the basis for aof new trial. A new trial will granted not be solely concerning damages. for new evidence City Ellis v. 267, 270, Hammond 157 Ind. 565;
N. E.
Curtis v. Mann
App. 601,
This additional evidence is on the *11 magnitude by that “the of the entered the court” apparent made it court “that the had taken into con assessing damages sideration matter minimus de damages purely speculative psychological and of a and appellant 1-8, Also nature.” insists that Rule Rules court, Supreme Court, permits the trial in a case which has jury, open up judgment, a to been tried without take the testimony entry judgment. and additional direct of a new We agreement argument are in the no error with would have judg- opened the trial been committed court if it had the provide although of to be liable because failure seat belts the collision negligence criminal was also attributed to of a drunken driver. Mortensen Company Rptr. 851, v. Southern 53 Cal. 853. These and Pacific daily many concerning necessarily the reflect observations use of seat belts do not pertaining the the this but to situation at time of accident seem recognition indicate future the common law.
152 testimony appellant’s motion. additional on ment and taken by 1-8, supra, interpretation limited of Rule But, our open says rule “the court words of the rule. The only judgment.” permissive. ex State can read that to We 362, 356, Superior (1963), 244 Ind. Court etc. rel. Sellers v.
191 E.N. 2d 307. under a motion
It courts have wide discretion is held that newly discovered evidence and we of new trial because Kimbrough (1965), abuse thereof. Kostas v. find no 170; 51, 49, 205 E. 2d App. N. Ind. Ind. Dec. Bartley Ry. (1942), 220 Ind. Chicago I. & E. Co.
360, 41 E. 2d objec- sustaining appellee’s
That the trial court erred in questions argued connection with appellant’s tions to rulings relating admissibility concern- of evidence four all to ing seat belts. appellee
In he cross-examination was asked if he did habitually car, to use seat belts in his own and later as riding passenger in
what was his custom when as a Objections equipped vehicle seat belts. to with each rulings assigned question and are were sustained said argument objections appellee’s here The are as error. sought by questions the information these is irrelevant
and not material to issue. To be relevant evidence sought be adduced should be and confined to directed dispute, subject are in or which form the matters which investigation. naturally logi It has whatever been said Jones, cally a fact in issue is relevant. tends establish Evidence, 1958) p. (5th The Law of ed. appellee had not fastened his belt when
The fact that seat disputed. purpose is not then the collision occurred knowledge appears be to show this cross-examination part some of the existence of awareness on using *12 danger might by the seat belt. he avoid or lessen which extent, scope, method and manner of cross-examination must be under the control of the trial court. These Witnesses, E., rest its sound I. discretion. 30 L. 112, pp. 103, 104. knowledge, intent, general like, In matters of and the as a rule, given the cross-examiner true is wide That is latitude. pertinent
where such matters are
to the issues of the
New
case.
York
Ins. Co. v. Lahr
192 Ind.
Life
613, 631,
Evidence of or intent legal significance if the of the witness’ action is not affected York, Chicago, it. The New St. Louis Railroad
Company v. Hammond
N. E. 83. appellee’s knowledge danger Here the evidence of could only go question contributory negligence to the or avoid consequences indirectly
ance of to that. If the failure prevent appellee’s to use seat belts could re covery equally it would be so whether he knew and appreciated danger legal significance or not. There is no knowledge. question his The real would be what the rea sonably prudent might expected appreci man know steps legal significance ate and take avoid. Since appellee’s knowledge danger unimportant no error sustaining objections questions committed to the even if the evidence can be to be relevant or material considered which about we have some doubt. excluding appellant ruling complains
Next of the court relating publications from evidence certain to the effective- minimizing preventing injury ness of seat belts in from automobile accidents. The three offered exhibits were en- Hazardous,” published by titled: Belts: Safe or “Seat A.; Belts,” published by A. M. “Automobile Seat Cornell Laboratory; Your Aeronautical and “A Seat Belt Could Save Life,” published Safety Council. National *13 commonly were
These documents not matters considered public showing record. There was no that their contents were appellee.
known to Nor does the evidence indicate that the had documents wide circulation which of itself might proof constitute some that the use of seat belts normal, natural, safety generally oriented, was so ac reasonably cepted prudent that man fail would never (under here) up.” circumstances involved “buckle showing, opinion it is our the trial court Without such excluding committed no error in the exhibits mentioned. prove generally treatises are not admissible
Scientific opinions Epps the facts or thereon. v. State 539, 549, 1 102 E. 491. Ind. N. although jurisdictions true in almost all
That rule remains McCormick, argument change for has been advanced. some Evidence, p. 620-621. § appellant contends were which
Other written documents ab- erroneously were identified as excluded from evidence report Congressional official Committee for an stracts Appellant of seat belts. the effectiveness of the use on Congress reports of the committee claims that official take the court can are matters which the United States Jur., knowledge Evi- 20 Am. effect he cites judicial and to this right to the dence, 41, p. mentioned relates 265. The citation § legislature in duty journals of the consider of a court to they are construing where other matters a statute or in might belts the use of seat pertinent. In a matter where care, may properly might the court reasonable not constitute Congressional reports and judicial Committee notice take reports are subject. the Committee on the Since studies judicial unneces- court it is notice of a matters within proper no find as evidence. We sary the court to admit the same Taggart ruling. Keebler error in E. explained by Thayer:
The rule involved is Professor proved, “The maxim that what is known need not be Mani- festo, (or notoria) indigent probatione, non be traced law; prob- indeed, far in the back civil and the canon it is ably of legal Jones, procedure coeval itself.” 1 The Law with Evidence, 120, p. (5th 1958). ed. survey
Appellant attempted to introduce evidence of being having by persons to what use was made of seat belts equipped police vehicles therewith. An Indiana state representative questions objected to was asked certain by appellee. However there no error saved on this *14 proposed appellant evidence because make an offer failed to prove Speece, Isenhour et the answers. Admr. al. 293, 301, 150 E. 2d 749. respect rulings concerning all
With the use of seat belts further observations should be made. All that we have said contributory negligence
of consequences and avoidable applies equal appellant’s argument also force with assumed or incurred hold risk. We that under here, contributory negligence circumstances as a matter of law not was established the evidence which showed with- dispute out did not fasten the available seat holding belt. Consistent with that reversible error could not any ruling have resulted from of the court on evidence with respect subject to the of seat belts. Our decision that failure contributory negligence is, to fasten a seat belt not here course, limited to the facts this case. The collision would passenger have occurred whether or not a had his seat belt fastened. opinion appellee’s eye evidence that would not have
collided rear with the view mirror if the seat belt was fastened eye proof injury is not same as conclusive that the would not have occurred.
Only by speculation injuries it can be said that would if the occurred seat belt was fastened. Even the testimony expert qualifies “properly” his to as fastened and passengers vary interpreta- different can assume will we knowledge “properly.” expert and the testi- tion Common only mony separate us that inform a few inches the head of belt user from the same a seat mirror.
Finding hereby no reversible error the is affirmed.
Carson, Faulconer, JJ., concur.
Prime, J., opinion. dissents with
Dissenting Opinion part part. J. — I concur in and dissent The ma- Prime, analysis compre- jority applicable in this case law respects hensive and correct in all one—that this court save damages. The rule should not the award of cited disturb Judge “(t)he damages, therefore, Wickens is that must be being, mankind, blush, so excessive as to strike at first as beyond measure, unreasonable, outrageous, all and such manifestly jury by passion, to have actuated show been corruption.” Jury present partiality, prejudice, pur- having fact, poses been tried means trier the case at bar jury. intervention of without my damage opinion $100,000.00
It is award of excessive at “first blush” that some factor other than so compensation expenditures pain *15 reasonable for made and suffering undergone may have into entered its consideration. attorney authority accept $50,000 for for
The had settlement, pre-trial appellant’s which offer he transmitted to attorney, responded $25,000 an offer of for who with settle- apprised attempts court ment. The trial of these at negotiated placed in the settlement letters which were record. agree
I that no rule of thumb is available to evaluate the any given injury, propriety of an for but award such award Appropriate reason. statement should be within bounds of recently Talley Employers has made Mutual Lia- been bility Company (La. Appeals 1966), 2nd So. Insurance page at 790: (I)t mathematical “. . . certain there can be no fixed multiple assessing damages injuries, from
formula for with suffering accompanying pain and duration. Each their .case must particular facts. The amount on its own rest same, but not be too far above not be the awarded need injuries.” prior comparable for below awards jurisdiction Comparable cases in our indicate
award here is reasonable. remanded on should be reversed and damages, trial court sole issue with instructions significantly re-evaluate its award downward. Reported in 221 2d N. E. 824.
Note. —
City Albany of New v. Whiteman. 20,383. Rehearing [No. January Filed December denied granted Petition to Transfer March 1968.] Kelso, Albany, A. Robert appellant. New for Eugene
Evan A. McLinn and A. Hancock, both of New Albany, appellee.